By Brent I. ClarkJames L. CurtisAdam R. YoungA. Scott HeckerPatrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: On May 18, 2021, OSHA adopted (by reference) CDC’s May 13, 2021 guidance for fully vaccinated individuals in many non-healthcare settings. Specifically, OSHA announced that employers should “refer to the CDC guidance for information on measures appropriate to protect fully vaccinated workers.”

According to the May 13, 2021 CDC “Interim Public Health Recommendations for Fully Vaccinated People,” which OSHA adopts by reference, individuals who are fully vaccinated against COVID-19 may stop wearing masks or maintaining social distance in the vast majority of indoor and outdoor settings, regardless of crowd size.

Under the Biden administration, federal OSHA has taken an aggressive position with regard to ramping up COVID-19 workplace health and safety enforcement, which often appears to conflict with CDC guidance. OSHA has not yet issued specific regulations relating to COVID-19 or infectious diseases more generally. OSHA supposedly has drafted a COVID-19 emergency temporary standard (ETS), which has not yet been released. As of May 17, 2021, we understand that the ETS is moving forward and will apply to all general industry worksites.

After the transition to the Biden administration, OSHA issued COVID-19 Guidance on January 29, 2021. With respect to vaccinated employees, OSHA explains that “workers who are vaccinated must continue to follow protective measures, such as wearing face covering and remaining physically distant, because at this time, there is not [sic] evidence that COVID-19 vaccines prevent transmission of the virus from person to person.” This prior guidance from OSHA appears to conflict with CDC’s May 13, 2021 update.

Until today, the probability of OSHA enforcement under two seemingly contradictory sets of guidance was an open question. Though the OSHA website still requires vaccinated employees continue to mask and social distance, OSHA has added a banner at the top of the webpage indicating that the CDC’s May 13, 2021 guidance will trump OSHA’s vaccinated employee guidance while OSHA reviews its own measures, and that new guidance from OSHA is forthcoming.

With respect to enforcement, OSHA looks to its guidance to determine whether hazards are “recognized” and whether employers’ health precautions are sufficient to abate the hazards. Due to OSHA’s adoption by reference of CDC’s May 13, 2021 update, we do not anticipate OSHA to try to establish liability based on alleged exposures from vaccinated, asymptotic employees.

As we previously blogged, the CDC’s May 13, 2021 guidance cautions that fully-vaccinated individuals must continue to abide by existing state, local, or tribal laws and regulations, and applicable workplace guidance. Further, they must follow rules put in place by businesses. CDC indicates that people are considered fully vaccinated:

  • 2 weeks after their second dose in a 2-dose series, such as the Pfizer or Moderna vaccines, or
  • 2 weeks after a single-dose vaccine, such as Johnson & Johnson’s Janssen vaccine

Non-safety considerations employers may want to take into account include how to internally enforce the requirement that only fully vaccinated individuals can go mask-less, whether employers’ policies may lead to disparate treatment or negatively impact morale, and maintained uniform corporate protocols.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.